UT law professor predicts possible outcomes of Supreme Court same-sex marriage cases

Speaking at a CLE hosted by the Austin LGBT Bar Association, Sanford Levinson—a professor of constitutional law and government at the University of Texas—said that it was clear as early as 2003’s Lawrence v. Texas which way the U.S. Supreme Court would rule on same-sex marriage and that the 2013 Windsor decision only made this more certain. The court will convene April 28 to hear oral arguments in four cases challenging state bans on same-sex marriage.

Ruling against these bans is what “everybody expects the court to do,” Levinson said, noting that the real question has always been why the court decided to take up the matter at this time. Levinson noted that he previously had predicted that the court would take up same-sex marriage by 2020, so it’s interesting to examine why it is doing so now. He also posited that other questions include what the vote count will be as well as who will write the opinion and what reasoning the opinion’s author will employ.

Professor Sanford Levinson of the University of Texas School of Law. Photograph courtesy of Christina Murrey and Texas Law.


Many observers expect the court to rule 5-4 with Justice Anthony Kennedy writing the majority opinion, which would likely be full of quotable passages on the importance of marriage to identity and life, Levinson said. “It would be Kennedy’s legacy.” But, he continued, there is a small possibility that the court will rule 6-3 with Chief Justice John Roberts joining the majority in order to control the opinion.

As to the question of timing, Levinson said that Supreme Court justices—particularly Justice Ruth Bader Ginsberg—are mindful of deciding when they will take on such contentious and important issues, sometimes opting to say a case doesn’t have standing.

Ginsberg, for example, has indicated that she believes that the court moved on Roe v. Wade when public opinion wasn’t far enough in favor of such a ruling and that the reproductive rights movement has paid the price. And, she thought in 2013 that the country wasn’t ready for a same-sex marriage decision, Levinson said. “That’s not the case any more. It’s very clear that the majority of the public supports gay marriage,” he said. “This will be the last same-sex marriage case, maybe forever, at the Supreme Court. There literally will be nothing else to say.”

But, Levinson noted, there will potentially be some important cases to follow the same-sex marriage decision, including cases addressing the right to enter polygamous marriages. “We could be in for some really interesting debates on that issue,” he said.

New leadership, recognitions mark 2014 General Session

At the General Session Luncheon on June 27, 2014, during the State Bar of Texas’s Annual Meeting in Austin, 2013-2014 State Bar of Texas President Lisa M. Tatum gave her farewell remarks before Trey Apffel, a League City attorney, was sworn in as the 2014-2015 State Bar president. Apffel, surrounded by his family, shared his objectives for the upcoming bar year, including expanding communication tools and outreach projects.

“My goal will be to engage our members in constructive dialogue and connect attorneys to the programs and services that will help make their practices more productive and their lives less stressful,” Apffel said. “We will continue to search for how we can improve an already efficient, effective, and exemplary bar association.”

Apffel, who has previously served on the board of directors of the State Bar of Texas and as a member of the executive committee, among other bar leadership roles, also highlighted the significance of the law in his family and the importance of taking an active role in the profession.

“We must not shy away from speaking out forcefully on issues that affect the profession of law, our practices, or most importantly, the people we represent,” he said. “It is the oath we take as lawyers, and it is the right to access to justice that we defend every day that makes our profession different from any other.”

Following Apffel’s speech, Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia, took the stage to present a keynote on the significance of Brown v. Board of Education, the landmark 1954 U.S. Supreme Court school desegregation decision that observes its 60th anniversary this year. Rosen’s talk also touched on some of the legal issues that currently stand before the court, such as same-sex marriage and search warrants for cellphone data.

Additionally, Cindy Tisdale, 2013-2014 State Bar chair of the board, introduced a number of 50-year lawyers, who stood to receive applause. Tisdale also announced three 75-year lawyers: Leroy G. Denman Jr. of San Antonio; Bernard Hirsh of Las Vegas, Nevada; and Milton H. West Jr. of Houston.

Boies & Olson: Gay marriage latest fight in civil rights movement

The fight for same-sex marriage is part of a continuum of the civil rights movement and one that has only one valid legal outcome, attorneys David Boies and Ted Olson said Tuesday in Austin during the LBJ Presidential Library Civil Rights Summit, which marks the 50th anniversary of the Civil Rights Act of 1964.

The two high-profile attorneys, who successfully represented the plaintiffs challenging California’s gay marriage ban in 2013, opened the three-day summit with an hourlong discussion that touched on their work on the landmark Supreme Court case, their views on the public’s shifting attitudes toward gay rights, and their relationship as a legal “odd couple” who put aside partisanship to work together. (The attorneys hold different political philosophies and argued opposing sides of Bush v. Gore in 2000.)

“I thought it was extremely important that we present this not as a left-or-right issue but as a constitutional issue,” said Olson, who is currently working with Boies in challenging Virginia’s gay marriage ban.

The attorneys acknowledged that some people hold religious objections to same-sex marriage. But as a legal matter, there should be no question about what is right, Boies said.


“As a matter of legal principle, there simply are not two arguments,” said Boies, arguing that the Fourteenth Amendment’s due process and equal protection clauses, along with U.S. Supreme Court precedent, establish a right to same-sex marriage.

The session, moderated by Daily Beast editor-in-chief John Avlon, did not include an opponent of same-sex marriage.

Momentum is strong in the wake of the court’s June 2013 decisions in United States v. Windsor, striking down part of the federal Defense of Marriage Act that refused to recognize same-sex marriages, and Hollingsworth v. Perry, invalidating California’s same-sex marriage ban, the attorneys said.

Since then, federal district court judges across the country, including in Texas, have cited the Supreme Court rulings in striking down same-sex marriage bans in their states, although the rulings in Texas and elsewhere are being appealed. (In announcing he would appeal the Texas ruling, Attorney General Greg Abbott said the U.S. Supreme Court has repeatedly ruled that states have the power to define and regulate marriage and that the Texas Constitution defines marriage as between a man and a woman.)

The district court rulings, along with rapidly changing public views in favor of gay rights, make it clear that the U.S. is on course to legalize same-sex marriage, Boies and Olson said.

“The Supreme Court has said we do not tolerate putting classes of our citizens into boxes and groups in which we deny them rights to equal dignity,” Olson said. “And that’s what we have done with our gay and lesbian citizens.”


SXSW 2014 legal film roundup

A man who robbed a Houston bank as a teen seeks redemption for his past. A pair of same-sex couples takes their case for legal recognition to the nation’s highest court with help from two eminent attorneys. An East Texas landowner and a group of activists try to defy the odds and stop the Keystone XL pipeline.

These and other real-life stories found a home on screen as part of the 2014 South by Southwest Film Conference and Festival, which took place March 7-15 in Austin.

Tucked among the festival’s 133 feature films were a number of law-related documentaries, including several with Texas ties.

Below, we highlight six films whose stories touched on legal themes.


Evolution of a Criminal

Click here for the story.


The Case Against 8

Click here for the story.


Above All Else

Driven by concerns about his family’s safety, East Texas landowner David Daniel wages an unlikely fight against TransCanada’s Keystone XL pipeline in director John Fiege’s Above All Else. A former high-wire performer, Daniel builds a network of platforms and shelters in the trees above his property, hoping to block progress on the massive pipeline project by staging a tree-sit with a group of environmental activists. Hazards emerge—legal and physical—and tension builds as the characters are forced to decide how much they’re willing to endure for the cause. Metroplex residents can catch Above All Else on April 4-5 as part of the Dallas International Film Festival.


Other films













Director Margaret Brown’s The Great Invisible explores the toll of the 2010 Deepwater Horizon rig explosion and subsequent oil spill through the stories of survivors, Gulf Coast residents, and industry executives. The film, which won the SXSW Grand Jury Award for documentary features, makes the case that the disaster’s effects still linger for many, even if media attention has waned.

The Internet’s Own Boy documents the case of Internet pioneer and activist Aaron Swartz, who committed suicide in 2013 at age 26 while facing computer fraud charges for downloading millions of copyrighted academic journal articles. The film, from director Brian Knappenberger, raises questions about the fairness of the federal prosecution and asks viewers to ponder whether society suffers lost knowledge when publicly funded research and documents are kept from the public domain.

Vessel, from director Diana Whitten, follows Dutch doctor Rebecca Gomperts in her quest to challenge some countries’ strict anti-abortion laws by offering abortion-inducing drugs to women aboard a ship offshore, in international waters. The film won both the SXSW Audience Award for documentary features and the Special Jury Recognition for Political Courage Award.

Images courtesy of, from top, John Fiege, The Great Invisible, and Vessel

SXSW legal film spotlight: The Case Against 8

Telling the story of landmark U.S. Supreme Court cases often means poring through personal diaries and legal filings and—if you’re not too late—jogging the memories of those who lived it.

For Ben Cotner and Ryan White, directors of the new documentary The Case Against 8, it meant turning on a camera and watching events unfold.

“I felt like a fly on the wall of history,” White said after a recent screening at South by Southwest in Austin, where the film played after premiering at the 2014 Sundance Film Festival.

Filmed over five years, The Case Against 8 offers an inside look at the legal and personal stories behind the effort to overturn California’s same-sex marriage ban, known as Proposition 8.

Most viewers will probably know how the case ends, but the filmmakers still manage to build tension as the story moves through the courts toward its resolution, the June 2013 Supreme Court decision in Hollingsworth v. Perry, which had the effect of allowing same-sex unions to resume in California.


The movie follows two interweaving storylines—the maneuverings of legal odd couple Theodore Olson and David Boies, who represented the plaintiffs challenging Proposition 8, and the lives of the plaintiffs themselves. Viewers, regardless of their politics, can enjoy watching two skilled attorneys practicing at the highest levels, even as they marvel at the behind-the-scenes access these attorneys granted the filmmakers.

Olson and Boies, who worked as opposing counsel in Bush v. Gore, are entertaining enough to carry the film. But if viewers connect with the story emotionally, it will be because of plaintiffs Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, who convey a mix of vulnerability and resolve in their fight to have their relationships legally recognized.

Stier, after watching the film at SXSW, told an audience she was struck by the gravity of the plaintiffs’ journey.

The film, which won the SXSW Audience Award in the Festival Favorites category, arrives as other same-sex marriage cases make their way through appeals courts across the country. That includes Texas, where U.S. District Judge Orlando Garcia voided the state’s same-sex marriage ban in February “in compliance with the U.S. Constitution and Supreme Court precedent.”

Garcia, of San Antonio, stayed enforcement of the decision pending the state’s appeal.

HBO Documentary Films will release The Case Against 8 in theaters June 6 in Los Angeles and New York before expanding to more cities June 13. Its debut on HBO is scheduled for June 23. 

Photo courtesy of SXSW 

Austin Firm to Argue Before U.S. Supreme Court

William R. Allensworth, senior partner with the Austin-based construction firm Allensworth & Porter, is scheduled to argue before the United States Supreme Court in the case of In re Atl. Marine Const. Co., Inc., 701 F.3d 736 (5th Cir. 2012) cert. granted, 12-929, 2013 WL 1285318 (U.S. Apr. 1, 2013). The hearing takes place on Oct. 9.

The case, which Allensworth believes could have a profound impact on the use and effect of forum-selection clauses throughout the construction industry, stems from a dispute between J-Crew Management Inc. and a subcontractor working on a project at Fort Hood in Killeen. 

After the contractor refused to pay J-Crew for completed work, Allensworth & Porter filed suit against the contractor on behalf of J-Crew. The case was initially filed with a federal district court in Austin, but the contractor demanded that it be transferred to Virginia, claiming that a forum-selection clause in the subcontract required all disputes to be heard there. U.S. District Judge Lee Yeakel refused the transfer, noting that with the project and most of the project documentation being located in Texas, many witnesses would be unavailable to testify.

The contractor filed a petition for a writ of mandamus in the United States 5th Circuit Court of Appeals. In a precedent-setting opinion, the 5th Circuit denied the petition. The contractor then filed a petition for a writ of certiorari with the U.S. Supreme Court.

According to Allensworth & Porter, during the trial, the Court will either affirm the 5th Circuit Court of Appeals and subject forum-selection clauses to review by a district court judge to ensure the parties’ choice of venue does not undermine the interests of justice, or alternatively, reverse the court of appeals and require judges to reflexively enforce forum selection clauses.

“The Supreme Court’s decision will resolve a split in authority among the country’s circuit courts over the proper procedural mechanism to enforce forum-selection clauses,” said Allensworth. “This is an important issue and we are honored to participate in it.”

Film on race, university admissions now online

We recently blogged about Austin broadcast journalist Lynn Boswell’s new documentary on race and university admissions, which premiered last month on KLRU-TV.

We can now report that the film, “Admissions on Trial: Seven Decades of Race and Higher Education,” is online for viewing anytime.

Boswell plans to update the film after the U.S. Supreme Court issues its eagerly anticipated decision in Fisher v. University of Texas at Austin, which could affect whether UT can consider race in admissions decisions.

Documentary focuses on race, university admissions

A documentary on the debate over how universities select their students premiered Thursday night on KLRU-TV in Austin and will be shown again at 1:30 p.m. Sunday.

“Admissions on Trial: Seven Decades of Race and Higher Education,” directed by Lynn Boswell, examines the history of race and university admissions. It airs as universities await a U.S. Supreme Court decision on Fisher v. University of Texas at Austin, which deals with whether the university can consider race in admissions decisions.

Boswell, a broadcast journalist who also has a law degree, said people who live outside Austin will be able to watch the documentary online in coming days. She also plans to update the film after the Fisher decision is announced.

Read more at klru.org.

Gideon v. Wainwright 50th Anniversary Commemoration

On March 18, Texas will mark the 50th year of Gideon v. Wainwright, the landmark U.S. Supreme Court decision requiring states to provide counsel to indigent defenders.

 A distinguished group of presenters will discuss the right to counsel in Texas, the lessons from Gideon, and the path forward. Featured speakers include the Honorable Sharon Keller, President of the Texas Criminal Defense Lawyers Lydia Clay-Jackson, Senator Rodney Ellis, State Bar of Texas President Buck Files, professor Bruce Jacob, and a representative from the U.S. Department of Justice. View the full agenda.

The event is complimentary. A registration form can be mailed or faxed to TCDLA. Or you can register online at www.tcdla.com.

  • March 18, 2013, 9:00 a.m.-11:00 a.m. CST
  • State Capitol Extension Auditorium, 1400 S. Congress Ave.
  • The event will also be live-streamed
  • 1.75 CLE, 0 Ethics

The celebration is co-sponsored by the Texas Indigent Defense Commission, the Texas Court of Criminal Appeals, State Senator Rodney Ellis, the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association.

Kim Askew Testifies at Sotomayor Hearing

On July 16, Dallas lawyer Kim J. Askew, chair of the American Bar Association Standing Committee on the Federal Judiciary, testified regarding the ABA's rating of Judge Sonia Sotomayor as "well qualified" to sit on the U.S. Supreme Court. Askew is a partner in K&L Gates and a former chair of the State Bar of Texas board of directors. In case you missed her testimony, here it is: